Why a proposed bill aiming to prevent kids from accessing porn sites is raising privacy concerns

For those 15-year-olds looking to purchase adult magazines at a local variety store, the current Canadian law prevents that transaction, limiting the sale of such sexually explicit material to those 18 years of age and older.

It's that kind of regulation that independent Sen. Julie Miville-Dechêne says she just wants to bring to the online world.

"The main goal of this bill is to reproduce in the virtual world what already exists in terms of protecting the children from exposure to porn in real life," she said in a phone interview.

The proposed law, titled An Act To Restrict Young Persons' Online Access To Sexually Explicit Material, and sponsored by Miville-Dechêne, would require porn websites to implement some kind of age verification mechanism to protect minors from exposure to online pornography.

"The idea that a kid who's 11, nine, 10 can open his phone, watch all this porn is a public health issue," she said.

The proposed legislation passed the Senate in spring and, this past week, second reading in the House of Commons with support from the Conservatives, NDP and Bloc. It will now be sent to committee for further study.

However, most of the Liberal MPs voted against the proposed bill, as the government has been working on its own online harms bill.

'This is censorship'

The act's critics say the proposed legislation would be ineffective, and would raise significant privacy and freedom of expression issues.

"This is censorship," said Michael Geist, a University of Ottawa law professor, who is also the Canada Research Chair in internet and e-commerce law.

He recently outlined his concerns about the proposed legislation in a recent blog post.

"This [proposed law] really does talk about blocking lawful content," Geist said.

Although Bill S-210  would require adult websites to verify users' ages, it does not specify how. Options could include a digital ID system or services that can estimate age based on a webcam scan of a user's face.

Adult websites that don't verify ages would face fines of up to $250,000 on their first offence.

Sen. Julie Miville-Dechêne says the main goal of her proposed bill is to reproduce in the virtual world what already exists in the 'real' world in terms of protecting children from exposure to porn. (Submitted by Julie Miville-Dechêne)

The bill would require age verification methods that are reliable, protect user privacy and personal information, collect and use personal information solely for verification purposes and any personal information would be destroyed, Miville-Dechêne sa

She said porn sites could use third party companies that are independent, accredited and experts in age verification.

"So the kid arrives on a porn platform. tries to go in, is automatically directed to a third party age verifier," she said.

'Absolutely possible to respect privacy'

Miville-Dechêne said other jurisdictions around the world, including Germany, France, the United Kingdom and some U.S. states, are either exploring or have implemented age verification systems to porn sites.

"It's absolutely possible to respect privacy of consumers of pornography and at the same time protect children," she said.

Miville-Dechêne has received support for the proposed legislation from some advocacy groups, including the Canadian Centre for Child Protection.

Signy Arnason, the organization's associate executive director, said they are supportive of the objective of the bill, and that ideally, age verification would occur as part of a comprehensive online safety overhaul.

"From our perspective it is reasonable for the government to impose stricter requirements on websites/companies who wish to make higher-risk content available to Canadians, and to penalize those who refuse to comply with our laws, just as we do in other industries," Arnason said in a statement to CBC News.

Arnason said that Canadians already accept that they must provide proof of identity or age when consuming products they access online, and that this verification occurs in most cases by virtue of being a credit card holder.

"We certainly hope that any legislation that aims to keep explicit online content away from children trickles down into other web services even if they are not solely focused on pornography."

'Fundamentally flawed'

On Thursday, the heritage minister's office said Miville-Dechêne's proposed legislation is "fundamentally flawed."

"Experts have loudly pointed to the serious issues in this proposal around issues of privacy, security, and technology," it said in a statement.

Michael Geist, a law professor at the University of Ottawa and Canada Research Chair in internet and e-commerce law, said the law, if passed, would be censorship. (Submitted by Michael Geist)

Those experts include Geist, who spoke out against the proposed bill during his own Senate committee appearance last year.

He disagreed that the age verification process would be just a minor inconvenience, that it would certainly require facial recognition that links the individual to the site and that the providers likely won't be located in Canada.

"It is hardly the equivalent of flashing your driver's licence at a store owner," he said. "It is significant."

Geist said the way the law is drafted, it captures a wide range of sites that might also include pornographic images, such as Twitter or Google.

"The notion that we would need age verification to access, frankly, general purpose sites like search engines and social media sites strikes me as enormously problematic," he said.

Geist said if a site is found to not be complying, a court order can be issued that would mandate Canadian ISPs block the site from their subscribers. That means lawful content on the website, that includes other material that is not sexually explicit, could be blocked for those over 18, material "they are lawfully entitled to access," he said.

He said minors should be prevented from accessing such sites through education, parental responsibility, and other filtering systems that are available.

Val Webber, a former performer in the adult industry and a post-doctoral researcher at Dalhousie University, said that these kinds of age verification proposals are ineffective. (Dalhousie University)

Val Webber, a former performer in the adult industry and a post-doctoral researcher in pornography, sexual and public health at Dalhousie University, said such age verification proposals are ineffective.

Webber is also on the advisory board of Ethical Capital Partners, the Ottawa-based private-equity firm that recently purchased the parent company of one of the most popular, yet controversial, adult websites in the world: Pornhub.

Webber said these age verification legislative proposals  won't stop minors from accessing adult content because young people will simply use a virtual private network (VPN) to circumvent any location-specific age requirements or move to sites that are not legally compliant.

Creates new avenues for identity theft

As well, they said there are immense privacy risks entailed by having to submit government ID to every adult website accessed.

"It creates new avenues for identity theft, phishing scams, blackmail, and so forth," Webber said.

Webber said that device-level filters are the best way to prevent youth from accessing adult content, but that studies show very few parents use these.

Aylo, Pornhub's parent company, said that while it has publicly supported age verification for years, the way many jurisdictions worldwide have chosen to implement it is "ineffective, haphazard, and dangerous."

"Any regulations that require hundreds of thousands of adult sites to collect significant amounts of highly sensitive personal information is putting user safety in jeopardy," the company said in a statement to CBC News.

It said that in Louisiana, for example, a state that has implemented an age verification law, Pornhub's traffic has dropped 80 per cent.

"These people did not stop looking for porn. They just migrated to darker corners of the internet that don't ask users to verify age, that don't follow the law, that don't take user safety seriously, and that often don't even moderate content," Pornhub's statement said.

"In practice, the laws have just made the internet more dangerous for adults and children."